We are all C.J. Roberts now....

by Ugh

Today SCOTUS decided Carpenter v. United States, saying essentially if the police want to gather your cell phone location records for the past ____ days they need a warrant under the 4th Amendment.  In the decision, in an opinion by the Chief Justice (who continues to vie with Kennedy for "least awful GOP nominee", the other three being hopeless in almost all cases), notes that "A person does not surrender all Fourth Amendment protection by venturing into the public sphere."

In addition, the opinion states that "We decline to extend [Smith v. Maryland] to cover these novel circumstances....the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection....we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through" cell-site location information.

This is in accord with my view that Smith would have been decided differently under today's technology. Smith involved "pen registers" installed by the FBI to track and record what phone numbers you called; since this information was kept by a third party you could not have any expectation of privacy in it under Katz v. United States. and therefore it was not a "search" for purposes of the 4th Amendment's warrant requirement.  This was a minimal amount of information and required significant effort by the government to install and collect was, again in my view, an unstated but underlying factor in the Court's decision.

That cell phone companies can track everywhere your phone has been - and thus presumably you - for the past however many months and it costs the government essentially nothing to gather it was a bridge too far for Roberts and the "liberal" Justices. Similarly, I hope, that you are storing personal information, photos, etc. in the "cloud" would not give the government license to just claim that information without a warrant.

1984 posits a society in which everyone important has a "Telescreen" in their home that acts as television, security camera, and microphone.  I often wondered why people would permit this, or not disable it somehow, or at least interfere with its functioning.  But a scene from the movie (and perhaps the book) The Hunt for Red October provided an epiphany for me.  In it Jack Ryan as played by Alec Baldwin asks "So how's [the captain] gonna get the crew off the sub? They have to want to get off. How do you get a crew to want to get off a submarine? How do you get a crew to want to get off a nuclear sub..."

That is, people want these devices on their person and in their home. Whether it be cell phones, smart TVs, Alexa, internet enabled security cameras, etc. The government doesn't have to install them and ensure their functioning - the people do that themselves. 

That SCOTUS has recognized - at least in this "narrow" case as Roberts describes it - we do not give up all privacy to roam around in public or be internet connected (if I can extend the opinion a bit), is a good, though perhaps fleeting, sign in the current awfulness.

Feel free to disagree, of course. 

Comments

[hairshirthedonist]

If the government (being terribly generic about it) wants to know where I'm going, let them pay someone to follow me around, like a normal person would do.

More seriously, the environment today is such that allowing unfettered government access to the kind of readily available (from a technical standpoint) information that now exists would turn our country, practically speaking, into a total surveillance state. And it's only going to get worse (before it gets better? - after the apocalypse?).

[wj]

Ir will be interesting to see what the Court decides when, inevitably, they get a case where police use IP addresses to determine who you have been in contact with over the Internet. Like cell phone data, and unlike pen registers, that information is already gathered automatically. (Always assuming someone can figure out how to explain "IP address" in sufficiently non-technical terms....)

[bobbyp]

It would not surprise me that the onrushing advance of technology will bypass all this and everybody will know where everybody is, even if you "drop out" entirely. Acid won't help.

So the race is on....death by ecological collapse/global warming or the dreary distopia of a Benthamite panopticon.

And people scoff when I say reducing our standard of living a bit, and slowing things down some is a non-starter.

[Michael Cain]

Most people will accept enormous intrusion into their private lives for the sake of convenience. I was in the technology forecasting business in telecom and cable for years. I consistently under-estimated just how much people would put up with in exchange for mobility. For example, by 1970 wireline phone standards, the quality of a voice call made on wireless networks today sucks, badly.

OTOH, in the early 1990s I got it absolutely right when I wrote internal white papers about the end of privacy.

[russell]

by 1970 wireline phone standards, the quality of a voice call made on wireless networks today sucks

by 1970 wireline phone standards, the quality of a voice call made on wireline phones today sucks.

I miss Ma Bell. but then, I'm a collectivist zombie.

I don't have a smart phone, and don't want one. I understand that they are convenient, but they just don't bring enough to the table to make me feel like I need to carry a network device around in my pocket all the time.

I do have a tablet, and I turn the location feature off. Not least because it's just another battery drain. I already know where I am, I don't need a gizmo to tell me.

I made a joke with my wife via email about an actor on a TV show we watch that IMO was getting a lot of mileage out of making "sad doggie eyes". Within 10 minutes, I got ads popping up in my mail reader and browser for pet related stuff. A veterinarian wanted me to buy his book about understanding my pet's moods.

I bought a funnel to use in pouring bird seed into the feeders. I now get ads for freaking plastic funnels about 10 times a day.

Here is a clue for all of you algorithms out there: I only need one funnel. I already bought it.

All of which is to say, I'm heartened by the SCOTUS ruling, because these kinds of basic civil rights issues are what got me actively engaged in politics back when the Patriot Act stuff was a thing. But it's not just government, the basic idea of any kind of privacy, at all, has gone out the window.

There are laws about data privacy and usage in other places. Not here, in any meaningful way.

And it's not just the privacy aspect. The level of technological, energy, and other infrastructure and resources that are dedicated to selling me a freaking plastic funnel are mind-boggling.

Stuff like this.

To sell me a funnel. Or help me understand my pet. Who doesn't exist. Or, you know, look up who won the best picture Oscar in 1972, or find out how to spell "ziggurat", or watch a funny video about a cat trying to fit into a box.

Right now. I have to know these things, and do these things, right now. With a thing in my pocket.

It's convenient for somebody, I guess. But I'm not sure the value it adds to our lives is worth what we spend, or give up, to have it.

It's like everything else. It ain't free, and the folks cashing in are likely not paying the whole cost.

Anyway, rant over.

[Ugh]

One thing I meant to articulate in the post about "expectation of privacy" in things that are open to the public is that, for the most part these days, you are still effectively private when you are walking around.

That is, the other people out and about in downtown DC (a) don't know me; (b) don't have any reason to know me; (c) don't care to know me (much to their loss); and (d) wouldn't remember me 5 minutes later if asked.

This is not the case with pervasive government surveillance, or rather, with the government recording things all the time and then searching it's database retroactively - even with a warrant.

I'd argue that the government doing things like photographing the exterior of every piece of mail sent in the United States, or potentially keeping pen register logs of every call made in the United States, or having effective access to cell site location information of anyone using a cell phone, is itself a search and/or seizure requiring a warrant "particularly describing the place to be searched, and the persons or things to be seized."

YMMV

[Michael Cain]

by 1970 wireline phone standards, the quality of a voice call made on wireline phones today sucks.

I read this, and paused, and read it a second time, and was suddenly struck by the fact that I don't remember the last time I made a real analog landline call. Sometime in 2002, maybe?

The current quality is particularly sad for me because back around 1994, I was doing technology demos that showed just how excellent the quality that could be delivered over a TCP/IP network was.

[Michael Cain]

One thing I meant to articulate in the post about "expectation of privacy" in things that are open to the public is that, for the most part these days, you are still effectively private when you are walking around.

But not, realistically, when you are sitting still in your home or office. Even 20 years ago I argued that you were likely sitting in front of a computer that ran an insecure operating system, and an unknown (and ever-changing, not necessarily under your control) set of software, connected to a data network. Any "expectation of privacy" as to your location, what you were working on, or most of your personal records, was a pipe-dream.

I had lots of interesting conversations on the subject with the legal staff. One team once told me, "Mike, you're the scariest person we deal with at the entire company."

[cleek]

the stupid party ascendant !

let's legalize religious discrimination !

yay!

[liberal japonicus]

One thing I meant to articulate in the post about "expectation of privacy" in things that are open to the public is that, for the most part these days, you are still effectively private when you are walking around.

This could be a bit of American exceptionalism. Admittedly, London is not the UK, but there's this

https://www.caughtoncamera.net/news/how-many-cctv-cameras-in-london/

I suspect that the US is behind the curve, but will catch up rapidly when we put our minds to it...

[CharlesWT]

Jurisdictions in the US are installing traffic cameras that record license plate numbers. Facial reconnection is becoming a thing too.

[Ugh]

Fnck